Anaya Nolan
Australia's legal system is a combination of inherited laws from Britain, known as English common law, and the numerous statutes that have been enacted by the various states and federal governments since federation. The two main sources of Australian law are cases, i.e. the decisions made by judges in the courts, and legislation, i.e. the legal rules made by parliament and by those to whom parliament has delegated authority.
| Characteristics | Values |
|---|---|
| Sources of Law | Case law or common law, legislation |
| Basis of Case Law | Decisions of judges in superior courts |
| Basis of Legislation | Rules made by parliament and those delegated authority by parliament |
| Jurisdiction | Based on the kind of issues being decided, with appeals from lower courts going to a higher court |
| Hierarchy of Courts | State Supreme Court, Federal Court, Supreme Court of another State |
| Legal System | Combination of inherited laws from Britain and U.S.-style constitutional framework |
| Law-making Bodies | State, territory, and federal parliaments |
| Law Enforcement | Executive, i.e., the public service |
| Law Interpretation and Adjudication | Judiciary |
| Types of Law | Criminal law, civil law |
| Law Application | Laws made in one state may not apply in another |
Explore related products
What You'll Learn
Case law
The Australian court system is hierarchical, with appeals from lower courts going to higher courts. This hierarchy is based on the types of issues being decided by the courts. The High Court is Australia's apex court, with the final say on all legal matters. It hears appeals from all other courts in the country and has original jurisdiction.
In case law research, jurisdiction refers to the court that heard the matter. Precedent, or the doctrine of precedent, is a key feature of the common law system. It means that judges in lower courts must follow the decisions of higher courts in the same jurisdiction with similar facts or legal principles. This ensures consistency and predictability in the application of case law.
Case reports can be "authorised" or "unauthorised". Authorised reports are those where the judge who wrote the decision checks the details of the case before publication. Unauthorised reports do not undergo this review but can still be used in a court of law.
Hunting and Angling Laws: Public Process or Private Interests?
You may want to see also
Explore related products
Legislation
In Australia, laws are made by the Commonwealth Parliament and each state parliament. The Commonwealth Parliament has the power to make laws that affect all people in Australia, but this power is limited to the subjects listed in the Australian Constitution. Laws made by the Commonwealth or a State Parliament are called Acts (or statutes or, more generally, legislation). While an Act is in draft form, it is called a Bill. Parliament may repeal (do away with) or amend (change) an Act.
Acts may empower a public authority, a local council, a Minister controlling a government department, or a public servant to make Regulations, Rules, ordinances, or by-laws. These laws are collectively known as subordinate (or delegated) legislation, as Parliament has delegated its powers to pass these types of laws to another body. Delegated law is made by the Executive – the Prime Minister and ministers – or by government officials. It has the same legal effect as statute law but can be overruled by statute law.
In the Australian Parliament, a bill becomes a law after it has been passed by a majority vote by the House of Representatives and the Senate and is given Royal Assent by the Governor-General. It is then called an Act of Parliament.
In addition to Acts, there are laws covering administrative details and other matters not easily dealt with in an Act.
The Law of Gravity: Who Discovered This Law?
You may want to see also
Explore related products
Common law
The common law system in Australia was inherited from England during colonisation. The Australian Courts Act 1828 ensured that all English common and statute law up to 28 July 1828 was to be applied in New South Wales and Tasmania, and later in Victoria and Queensland. The reception of English law in Western Australia and South Australia was deemed to have occurred on 1 June 1829 and 28 December 1836, respectively.
The courts are arranged in a hierarchy, with appeals from lower courts going to a higher court. The High Court of Australia is the apex court, with the final say on the judicial determination of all legal matters. It hears appeals from all other courts in the country and has original jurisdiction.
While laws made in one Australian state do not apply in another, the Commonwealth Parliament has the power to make laws that affect all people in Australia, although this power is limited to the subjects listed in the Constitution.
Understanding Contract Law's Core Objective
You may want to see also
Explore related products
$53.99 $53.99
$70.86 $84
State and federal laws
Australia has a federal system of government, with power shared between the federal government and state governments. There are three levels of government in Australia: federal, state and local. Australians aged 18 and over vote to elect representatives to federal, state and territory parliaments, and local councils to make decisions on their behalf.
The federal Parliament was given responsibility for areas that affect the whole nation, such as defence, immigration and trade. The Commonwealth Parliament has the power to make laws that affect all people living within Australia, but this power is limited to the subjects listed in the Constitution. State parliaments can also refer matters to the federal Parliament, asking them to make laws about an issue that is otherwise a state responsibility.
The six state parliaments can make laws in the same areas as the federal Parliament, which can lead to conflicting laws. In the event of a collision, the federal law overrides the state law, according to Section 109 of the Constitution of Australia.
The two main sources of Australian law are cases (the decisions made by judges in the courts) and legislation (the legal rules made by parliament and by those to whom parliament has delegated authority). When a case comes before a court, the judge decides what evidence is relevant, what facts have been proved, what law is relevant, and applies that law to the facts in making a decision which is binding on the parties. The kind of case that a particular court decides depends on the jurisdiction of that court, or its authority to determine particular issues. The courts are arranged in a hierarchy, with appeals from lower courts going to a higher court.
The High Court is Australia's apex court. It has the final say on the judicial determination of all legal matters and hears appeals from all other courts in the country.
The First Laws Against Minors Smoking
You may want to see also
Explore related products
![RULES OF EVIDENCE [DESK REFERENCE & CASE SUPPLEMENT]: Trial Tactics, Strategic Checklists, Flowcharts, and Practical Tools for Courtroom Success](https://m.media-amazon.com/images/I/71IfTncWCHL._AC_UY218_.jpg)
Indigenous law
Indigenous Australian customary law, or Indigenous Australian customary lore, refers to the legal systems and practices unique to Indigenous Australians, that is, Aboriginal and Torres Strait Islander people. Indigenous peoples of Australia comprise two groups with very different histories, ethnicities, and customs: Aboriginal peoples and Torres Strait Islanders.
Indigenous Australian customary lore is intertwined with cultural customs, practices, and stories from the Dreamtime. Lore dictates the rules on how to interact with the land, kinship, and community. It is passed down from generation to generation through cultural works such as songlines, stories, and dance. Lore is learned from childhood and dictates the rules on how to interact with the land, kinship, and community.
Indigenous Australian customary law varied between language groups, clans, and regions. It developed over time from accepted norms within Indigenous societies. The laws regulated human behaviour and relationships, mandated sanctions for misdeeds, and connected people with the land and each other through a system of relationships.
Prior to colonisation, the only systems of law to exist in Australia were the varied systems of customary law belonging to Indigenous Australians. Indigenous systems of law were deliberately ignored by the colonial legal system, and in the post-colonial era have only been recognised as legally important by Australian courts to a limited degree.
In 1992, the High Court ruled in the Mabo case that Australia was not terra nullius in 1788, opening the door for more legal action, including native title claims. The Native Title Act 1993 now regulates Indigenous customary claims to land. In the Northern Territory, some statutes and courts make explicit reference to customary law where it is useful in identifying relationships and social expectations. On 17 July 2020, the Queensland Government introduced a bill in parliament to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), which was passed as the Meriba Omasker Kaziw Kazipa Act 2020.
Understanding the Void-for-Vagueness Doctrine
You may want to see also
Frequently asked questions
There are two main sources of law in Australia: case law or common law, and legislation. Case law refers to the decisions made by judges in superior courts, while legislation refers to the laws made by Parliament.
Common law, also known as English common law, was inherited from Britain during the colonisation of Australia. It is based on the idea that the law applied to everyone in society, including the common people. Over time, judges have interpreted and applied these laws to develop a body of legal principles that make up common law.
Legislation can be enacted by the state, territory, and federal parliaments. A proposed law or change to an existing law is introduced as a bill in the House of Representatives. If the bill passes a majority vote in the House of Representatives and the Senate, and receives Royal Assent from the Governor-General, it becomes an Act of Parliament, which is a law for Australia.
Case law is interpreted and applied by judges in the court system. When a case comes before a court, the judge listens to the evidence presented by the parties and decides on the relevant facts and laws to make a decision. Judges are bound by the interpretations of law made by higher courts in cases with similar facts or legal principles, known as precedent.
